Friday, December 11, 2020

To Vaccinate or Not to Vaccinate: Which Parent Decides?

Reprinted from The Lawyer's Daily

There has been considerable encouraging news regarding the imminent release of effective COVID-19 vaccines.  While this is undoubtedly news we have all been waiting to hear, for some separated parents, the availability of a COVID vaccine may reopen old differences relating to medical decisions for their children.

Two recent decisions provide a helpful hint as to how our courts might approach disputes between parents about whether their children should be vaccinated.

In Tarkowski v. Lemeiux (2020 ONCJ 280), both parents argued at trial for sole custody of their 6-year old daughter. The Court ultimately granted custody to the mother with the proviso that the father would have custody over all vaccination-related decisions.

Justice Jones’ noted evidence that mother had a checkered history regarding her child’s vaccinations, including a belief that vaccines might be linked to autism or immune system problems. The Court pre-emptively granted the father decision-making power with respect to vaccinations, after considering the prevalence and impact of the COVID-19 pandemic. Notably, this decision-making power granted included the authority to vaccinate the child with a future COVID-19 vaccine.

The Court approached this issue with an eye towards the greater public’s health in addition to the child’s health. As Justice Jones stated at para 74, “Since children and young people often show little or no reaction to the virus, a decision to vaccinate a child may be informed by a public health concern that COVID-19 is a virus that is easily spread and which disproportionately harms older people, and people with challenged immune systems. Ultimately, a decision to vaccinate [the child] may be a decision to protect other vulnerable people against [the child] spreading the disease. “

In another recent decision, B.C.J.B. v. E.-R.R.R. (2020 ONCJ 438), the Court heard a motion that addressed a father’s request to be granted decision-making authority over having their child vaccinated.

At the heart of the dispute was determination of the applicable test for transferring decision making authority over vaccinations from one parent to the other, prior to a trial of the issue. The father argued that the test was the “best interests of the child”, while the mother, who had sole custody of the child pursuant to an early parenting agreement, argued that in order to change the status quo, the father needed to establish “exigent circumstances.”

The Court ultimately held that since this was not a variation case, the focus ought to be on the best interests of the child. The crux of the father’s argument in support of vaccinating the parties’ son, was that the child, who had not been vaccinated in accordance with the standard Ontario vaccinations for children of his age, was at an elevated level of risk due to the pandemic, and the best interests of the child therefore necessitated a ruling pre-trial. 

The motion judge, Finlayson J., ruled in favour of the father, stating at paragraph 124, “I find the child is already exposed to risk by not being vaccinated as it is.  It is not an answer to argue that the child has not contracted a disease during the last 10 years, so what’s the harm in waiting a few more months to trial.  This, in effect, is what the mother argues.  If it is in the child’s best interests to act now, then the Court should intervene.” 

The motion judge very deliberately stated that the father’s pre-trial vaccine powers did not extend to a COVID-19 vaccine, which would need to be addressed at trial.

We are advised that an appeal from this decision is pending. 

A takeaway for counsel from these cases is that once a COVID-19 vaccine is released, the best interests of the child will most likely determine whether a child should be vaccinated, irrespective of the de facto custodial parent’s personal views on vaccinations.  

It remains to be seen how the court will balance consideration of a child’s best interests with broader the public health interests and the prevalence of anti-vaccination beliefs, but these two cases point in the direction of a likely, wider judicial affirmation of the necessity of Covid-19 vaccination for children, even where one parent objects.

- Garry J. Wise, Simran Bakshi, and Joshua Prizant, Toronto

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